Toelichting bij COM(2007)264 - Bescherming van de consumenten met betrekking tot bepaalde aspecten van timeshare, langetermijnvakantieproducten, wederverkoop en ruil

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dossier COM(2007)264 - Bescherming van de consumenten met betrekking tot bepaalde aspecten van timeshare, langetermijnvakantieproducten, ...
bron COM(2007)264 EN
datum 23-05-2007


1. Context of the proposal


1.1. Motivations and objectives of the proposal

Directive 96/26/EC on admission to the occupation of road transport operator together with Regulations (EEC) No 684/92 and (EC) No 12/98 on access to the market for coach and bus services formed initially the major component of the internal market for international passenger transport services by road.

The Directive introduced minimum quality standards which must be met in order to enter the profession, while the two Regulations liberalised international occasional passenger services, established a special authorisation procedure for international regular passenger services as well as allowed cabotage services in the course of such international services.

These rules now ought to be made consistent with the new legal framework stemming from the regulation on public passenger transports by rail and road, which is on the verge to be adopted by Parliament and Council. These rules need also to be made clearer and in some cases simplified since it has appeared from experience that certain legal provisions entail unnecessary administrative burdens.

1.2. General context

Regulation (EEC) No 684/92 opens the access to the market of international carriage of passengers by coach and bus while Regulation (EC) No 12/98 lays down the conditions for non-resident carriers to operate services within a Member State. Carriers have such access if they hold a Community licence which is granted only if they are established in a Member State and if they satisfy minimum requirements in terms of good repute, financial standing and professional capacity in accordance with Directive 96/26/EC.

The Commission had announced in its legislative programme for 2006 its intention to examine more in detail these rules and, if needed, to make them simpler and clearer. After a public consultation and an impact assessment, it appears that the lack of clarity or complexity of existing provisions renders enforcement difficult and entails unnecessary administrative burdens in the following areas:

– the scope of application of the Regulation is unclear as regards passenger

transport by Community carriers to and from third countries and transiting Member States;

– Regulation (EEC) No 684/92 has created an authorisation scheme for regular

international passenger services. Undertakings that wish to operate an international line need to apply for an authorisation. For each application national authorities must seek the agreement of the other Member States


affected by the service, hear the transit countries, assess the consequences of the introduction of the service and notify the applicant whether they accept or reject the application. The procedure is perceived, especially by the industry, as creating high barriers for new entrants and unnecessary bureaucratic burdens;

– the exchange of information between Member States, although already

provided for in the current rules, seems rather ineffective. As a result, undertakings which operate on the territory of a Member State other than their Member State of establishment hardly risk any administrative sanctions, as a result of which the competition might be distorted between these undertakings less inclined to comply with rules and the others;

– the diversity of formats used for the Community licences and certified true

copies creates problems during inspections and often leads to a loss of valuable time for operators and enforcement staff.

1.3. Provisions in force in the field of the proposal

The proposal aims at revising and consolidating Regulations (EEC) No 684/92 and (EC) No 12/98.

1.4. Consistency with the other policies and the objectives of the Union

The new regulation contributes indirectly to improving road safety by a stricter monitoring of undertakings which operate in several Member States and ensure consistency with the new rules of public services in road and rail transport.

This proposal falls under the programme “better regulation” and is in conformity with the commitment taken by the Commission to simplify and update the acquis. A particular attention was given to simplification and to greater coherence of the rules on public services and the other rules on road transport, in particular Regulations (EEC) No 881/92 and (EEC) No 3118/93 on the access to the road haulage market and directive 96/26/EC laying down the basic conditions to be authorised to the profession and for their monitoring.

2. Consultation of the interested parties and impact analysis

2.1. Consultation of the interested parties

Consultation methods used, principal sectors concerned and the respondents' general profile

Before drafting this proposal a public consultation exercise was conducted in order to gather as many comments and suggestions as possible from the individuals and bodies concerned. This consultation concerned both road freight transport and road transport of passengers. It was organised jointly with the one on admission to the profession, used a questionnaire which was published on internet and sent to all the organisations which represent at national or European level the key stakeholders.


The Commission received 67 contributions from national authorities, international and national associations of road operators, users, employees or various interest groups and individual companies. The Commission discussed the key issues addressed in this recast in the framework of the social dialogue with the social partners on 5 September 2006. On 7 November 2006 a consultation meeting with stakeholders was held in Brussels with the participation of delegations from 42 organisations representing the industry plus 37 observers from national administrations.

Synthesis of the received answers and in the way in which they were taken into account

The respondents generally shared the view that there is a need for further simplification and clarification of the current regulatory framework for the road transport market. One aspect repeatedly highlighted was the need to render the current rules, notably the ones on access to the market of road haulage more easily and effectively enforceable. It emerges clearly from the consultation the other following conclusions:

– goods transport and passenger transport by road should remain regulated in

two separate sets of rules. These are two different types of transport and stakeholders feel that they do not have sufficient commonalities to treat them in one legal text;

– many contributions pointed out the need for applying correctly the existing

rules and have them enforced properly. A better cooperation between national enforcement authorities should take place, which would require the setting-up of an EU-wide register of licensed operators or database of Community licences.;

– several stakeholders claimed that the procedure to authorise international

regular passenger services should be simplified and was creating unnecessary red tape. It was also suggested to simplify procedures for regional or local cross-border services;

– there has also been a clear support to further standardise the models of

Community licence, certified copies and driver attestation.

The summary of the received answers to the public consultation, complete text of the individual answers and report of the hearing of 7 November 2006 are available on the following site: ec.europa.eu/transport/road/consultations.

2.2. Obtaining and use of expertise

The stakeholder consultation was accompanied by an independent expert, Prof. Brian Bayliss, co-chairman of the Committee of Enquiry on Road Transport which, in July 1994, had elaborated a comprehensive report on the state of completion of the internal market in road transport and of the work necessary to complete it.

2.3. Impact analysis

The impact analysis carried out to prepare this proposal covered the recast of both the rules on admission to the profession and the ones on access to the market, in view of their close links and in view of their overlaps.

The impact assessment built on various studies carried out during 2004, 2005 and 20061. It was the result of a contract with an external consultant. During the work on the contract, constant feedback was provided from the impact assessment to make sure that the proposed recast took account of its findings. The principle of proportionate analysis has been applied and the analysis has focused on the most significant forms of impact and distributive effects.

Inhoudsopgave

1.

Five policy options have in total to be assessed:



1. the “no change” option would leave the present road legislation unaltered and the problems outlined at the start of this document would persist and eventually become worse;

2. the “technical simplification and non-regulatory” option would, as far as passenger transport is concerned, be only to merge and codify the two texts. The main problems identified at the start of this document would remain.

3. the “harmonisation” option would mean to merge and simplify the texts, notably the authorisation procedure for international regular services while harmonising the admission to the occupation and enhancing the monitoring and controls. This option would improve compliance with the road transport rules and would reduce administrative costs. It would also reduce the barriers for new entrants in the market of international road transport of passengers.

4. the “higher quality standards” option would raise to an even higher level the average professional qualifications in the sector and improve its financial capacity. In the long run, it would encourage more efficient operators, bringing benefits for the whole economy. In the short term, it entails additional administrative costs which would penalise very small undertakings and independent operators. This policy option is more controversial.

5. the “liberalisation” option would totally abolish the current authorisation procedure. But without harmonising quality standards at the upper level (i.e. implementing option i first, it could push more efficient operators out of the market. In the long run, the overall effect on market efficiency would be neutral if not negative. This policy option would cut jobs in certain countries. Given its wide-ranging implications a much more thorough analysis would need to be undertaken exceeding the current framework of simplification.

In view of these results, this proposal reflects the option 3 known as “harmonisation”. The summary of the impact analysis and the complete report of this impact analysis accompany this proposal. The impact analysis shows that the present regulation in combination with the other two regulations proposed at the same time (on goods transport and admission to the occupation) will reduce distortions to competition, will improve compliance with social and road safety rules and will offer the Member States the possibility to reduce administrative costs in the order of EUR 190 million per year.

Studies were carried out on driver attestations (ECORYS), on admission to the occupation and on the Working Time Directive (TNO).

3. Legal elements of the proposal


3.1. Summary of the proposed measures

2.

This proposal consolidates and merges the two regulations on access to the road transport market. It introduces the following substantial modifications:


– a simpler and faster procedure to authorise international regular services:

certain grounds for refusal provided for in the current authorisation regime are outdated and should be removed. Authorisation should henceforth be granted unless there are clearly specified grounds for refusal attributable to the applicant. Only one ground for refusal relating to the relevant market remains, namely that the service applied for would seriously affect the viability of a comparable service operated under a public service obligation on the direct sections concerned;

– simplified and standardised Community licence: more detailed specifications

are provided for the format of the Community licence and of the certified true copies in order to reduce administrative burden and delays especially at road side checks;

– enhanced legal provisions obliging a Member State to act, when requested to

do so by another Member State, when a carrier to whom it delivered a Community licence commits an infringement in another country. Such action should take the form of at least a warning. Enhanced procedures to communicate between Member States are put in place using the contact points established pursuant to the new Regulation on the admission to the occupation of road transport operator.

3.2. Legal basis

The draft Regulation repeals Regulations (EEC) No 684/92 and (EC) No 12/98.

3.3. Principle of subsidiarity

The principle of subsidiarity applies insofar as the proposal does not fall within the exclusive competence of the Community.

The main objective of the proposal is to clarify existing Community rules and therefore it cannot be achieved by the Member States alone. Moreover, the proposal seeks to enhance the existing exchange of information between Member States, which cannot be made by a Member State alone and can be made only in a compartmental way on a bilateral basis by the Member States.

A Community action is therefore necessary having regard to the impossibility for a Member State or a group of Member State of solving satisfactorily the identified problems. The proposal is therefore in conformity with the principle of subsidiarity.


3.4. Principle of proportionality

3.

The proposal does not exceed what is required to achieve its objective and respects the principle of proportionality for the following reasons:


– it deals with international transport for which a prescriptive approach is

required which allows an homogeneous application and provides for fair competition;

– in case of serious or repeated minor infringements, the proposal obliges

Member States to issue a warning but leaves it to the discretion of Member States to decide when Community licences or certified copies should be withdrawn.

3.5. Choice of the instruments

The proposed instrument is a regulation since it aims at simplifying rules already embedded in a regulation.

4. Budgetary impact

The proposal will not affect the Community budget.

5. Additional information

4.

510


5.1. Simplification

The proposal contributes to the simplification of the acquis. It appears in the rolling programme of the Commission for the update and the simplification of the acquis communautaire and in its legislative and work programme under the reference 2006/TREN/ 42.

512 In this proposal, the obsolete measures were abolished and, as much as possible, the 515 contents, the presentation and the formulation of the regulations were re-examined to facilitate their comprehension and to avoid ambiguous interpretations.

This proposal is in conformity with the inter-institutional agreement of 28 November 2001 for a more structured recourse to the technique of the recasting of the legal acts. It was worked out on the basis of a preliminary consolidation of the text carried out, by means of a computer system, by the Office for Official Publications of the European Communities. When articles were renumbered, the correlation between old and the new numbering is exposed in a correspondence table which appears in Annex II to the recasted regulation.

5.2. Repeal of existing legislation

The adoption of the proposal will lead to the repeal of Regulations (EEC) No 684/92 and (EC) No 12/98.


5.3. European Economic Area

The proposed act concerns an EEA matter and should therefore extend to the EEA.

5.4. Detailed explanation of the proposal

This proposal consolidates and merges Regulations (EEC) N° 684/92 and (EC) No 12/98 on the access to the market of coach and bus services. It clarifies the existing legal provisions and modify them on certain aspects to strengthen overall consistency and reduce administrative burdens. It introduces the following substantial modifications:

Clarification of the scope, the definitions and the principles

Article 1 clarifies the scope. The regulation applies to all international carriage on the territory of the Community, including carriage from and to third countries, and to national road passenger services operated by a non-resident haulier on a temporary basis (“cabotage”). As regards international carriage to or from a third country Article 1 specifies that, as long as there is no agreement between the Community and the third country in question, the Regulation does not apply to that part of the journey carried out within the Member State of picking up or setting down of passengers. It does, however, apply within a Member State crossed in transit.

Article 2 is reworded and now contains only the definitions of the various services. The normative provisions are moved to Article 5.

Community licence and certified copies

Article 4 introduces new provisions to standardise the Community licence and the certified true copies the models of which are provided in Annex I.

Access to the market

Article 5 specifies the conditions are which the various services may be operated. It has been complemented by the normative provisions previously contained in Article 2.

Procedure to authorise international regular services

Article 8 provides for a streamlined and simplified procedure as compared to the one laid down in Regulation (EEC) No 684/92. Authorisation will henceforth be granted unless one of three grounds attributable to the applicant applies. Only one ground for refusal relating to the relevant market remains, namely that the service applied for would seriously affect the viability of a comparable service operated under a public service obligation on the direct sections concerned. Transit countries, i.e. Member States which are not affected by the service because no passengers are picked up or set down, will not be heard anymore, but will be informed once the service has been authorised.

In case the authorising authority is unable to reach a decision the case can be referred to the Commission. The deadline of ten weeks for the Commission provided for in Regulation (EEC) No 684/92 has proven too short. It should be extended to four months to allow the Commission to reach a well-founded solution.

Cabotage

The rules on cabotage in passenger transport by road remain in substance largely unchanged. They were previously laid down in Regulation (EC) No 12/98.

The provision of Article 9 of Regulation (EC) No 12/98 on safeguard measures in case of serious disturbances of a national transport market is not taken over into the new recast Regulation. This provision has never ever been used since the opening up of national markets for cabotage and can therefore be considered redundant.

Cooperation between Member States

Although the existing regulations have already provided for the mutual assistance by Member States practice has shown that this cooperation never fully developed. Infringements committed by carriers outside their Member State of establishment were only in isolated cases reported by the Member State where the infringement took place and hardly ever resulted in a sanction imposed by the Member State of establishment of the carrier.

In order to strengthen and facilitate the exchange of information between national authorities Article 20 obliges Member States to exchange information via the national contact points which are to be set up pursuant to the Regulation on the admission to the occupation of road transport operator. These are designated administrative bodies or authorities in charge of carrying out the information exchange with their counter parts in the other Member States. Also, Article 24 stipulates that Member States enter in their national register of road transport undertakings all serious infringements and repeated minor infringements committed by their own haulier and which have led to the imposition of a sanction.

Withdrawals of Community licence and exchange of information

There are two possible approaches to homogenise the current monitoring and control systems by Member States. The first is to empower the Member State so that they can impose dissuasive sanctions to non resident carriers crossing their territory, for instance by suppressing the mutual recognition of the Community licence. This option could lead to discriminatory behaviour by the control authorities and may not be compatible with the freedom of circulation. A second approach is to enhance the power and means of the national authorities who are habilitated to deliver and withdraw the Community licence. The current proposal, in combination with the recast of Directive 96/26/EC, follows this latter approach.

Consequently, when a carrier commits a serious infringement or repeated minor infringements of Community road transport legislation, Article 22 introduces an obligation for the competent authority of the Member State of establishment of the carrier to issue a warning. This obligation also applies to cases where the carrier committed such an infringement in another Member State. In addition, Article 22(1)

clarifies the sanctions that the Member State may impose on the hauliers established within its territory, namely the (temporary or partial) withdrawal of certified copies of the Community licence or of the Community licence. It is clarified that a Member State may also impose as a sanction the temporary or permanent disqualification of a carrier's transport manager.

Article 23 introduces a new procedure to be followed by the Member State which ascertains an infringement committed by a non-resident carrier. This Member State has one month to communicate the information according to a minimum standard format. It may ask the Member State of establishment to impose administrative sanctions. The Member State of establishment of the carrier concerned has three months to inform the other Member State of the follow-up.

The reporting obligations for Member States are now combined into one article, Article 28.

Unchanged provisions

5.

The following provisions remain in substance unchanged, albeit some technical adaptations:


Regulation (EEC) No 684/92 – Articles 3, 6, 8, 9, 10, 11, 12, 14 and 15. Regulation (EC) No 12/98 – none.

^ 684/92

^> new